RE NGUYEN VAN HUNG

CAMP 282/2023, [2024] HKCA 628

On Appeal from [2022] HKCFI 3336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 282 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 501 OF 2022)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 14 August 2023, the applicant took out a summons with this court to apply for leave to appeal out of time against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 9 May 2023 ([2023] HKCFI 1121)  (“the EOT Decision”)  refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 7 November 2022 ([2022] HKCFI 3336)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 11 October 2021 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 11 September 2020 rejecting the applicant’s subsequent non-refoulement claim (“the Director’s Subsequent Decision”).

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 8 July 2015 and surrendered himself to the Immigration Department on 22 July 2015.  On the same date, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Bui Minh Tuan (“Bui”).  By a Notice of Decision dated 30 December 2016, the applicant’s non-refoulement claim was rejected by the Director.  On 19 March 2020, the applicant filed a subsequent claim on the basis that although his loan with Bui was settled in early 2018, in August 2018, he borrowed a loan from Nguyen Van Con (“Con”)  and the applicant’s business collapsed in November 2019 and he defaulted in his loan payment to Con.  Details of the applicant’s non-refoulement claim and his subsequent claim have been summarised by the Judge at [4] - [7] of the Leave Decision.

5.  By the Director’s Subsequent Decision, the Director rejected the applicant’s subsequent claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Subsequent Decision to the Board.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Subsequent Decision.  The Board’s reasons for its decision were summarised by the Judge at [11] - [12] of the Leave Decision:

“11. Having considered the applicant’s evidence, the Board noted the followings. First, the applicant did not provide any evidence of the loan. Secondly, the creditor and the followers had ample opportunities to kill the applicant but did not do so. Thirdly, the Board observed that the applicant was in a stable state of mind after the alleged incidents. The above findings indicated that the applicant’s claimed fear of harm was not imminent or the ill-treatments did not attain a minimum level of severity. Further, the dispute was a pure monetary dispute without state involvement [34]-[39]. Meanwhile, the country of origin information did not support a finding that state protection would not be available to the applicant [42]-[47]. In any event, internal relocation was a viable alternative [90]-[96].

12.  As a result, the Board rejected the applicant’s claim and dismissed his appeal.”

7.  On 17 June 2022, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  His grounds of intended review were summarised by the Judge at [14] of the Leave Decision:

“(1)  He believes that the Board’s Decision is wrong as it is unreasonable and unfair because the Board did not give him sufficient time and chance to arrange evidence for his hearing.

(2)  The Director did not consider state acquiescence in his case as he was tortured by state agencies.

(3)  The Director had failed to consider his arguments and also the Country of Origin Information in his favour.

(4)  Corruption and incompetency of the administration in his country is serious. Human rights protection is not sufficient and the Director had failed attained high standards of fairness.”

8.  As the applicant was absent in the oral hearing before the Judge on 28 September 2022, the Judge considered and determined his application on paper.

THE JUDGE’S DECISION

9.  On 7 November 2022, the Judge refused his application for leave to apply for judicial review.  His reasons were stated at [15] - [21] of the Leave Decision:

“15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

18. The grounds in paragraph 14 do not assist his application. Ground (1)  is not supported by any evidence as there was no application before the Board for time to prepare his case. Ground (2)  is simply not the fact found by the Director or the Board. Ground (3)  and ground (4)  are his bare assertions and opinions without any evidence in support. All grounds fail.

19. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 13 April 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was almost five months late with his intended appeal.

12.  On 9 May 2023, the Judge refused the applicant’s application, holding that the applicant was not able to raise any valid ground to challenge the Board’s Decision and that there was no realistic prospect of success in his intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation (attaching a “Statement”)  taken out on 14 August 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In his summons and supporting affirmation, the applicant merely asserted that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his home country.

14.  In his “Statement”, he alleged that it was unsatisfactory that the Court of First Instance ruled that he had no chance of success in reviewing the decisions of the Board and the Director.  He further asserted that if refouled, his life would be in danger given that the creditors and gangsters were violent and, as he was not an active person, internal relocation would not be feasible.  He also complained that the Immigration Department failed to consider his human rights under various legislations but failed to give any specific particulars in support of his contentions.

DISCUSSION

15.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

18.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  In our view, the applicant’s delay of almost five months is substantial and inordinate.  The applicant has failed to give any reason, let alone good reason, to explain his delay.

21.  More importantly, his intended appeal has no merit. There is no substance in his complaint that he was not afforded the opportunity to present his case and country situation.  The applicant had ample opportunities to make his case in his written submissions before the Judge.  He also did not give any reason as to why he was absent for the oral hearing before the Judge with regard to his application for leave to apply for judicial review.

22.  In any event, the applicant’s allegations are all vague, bare and general in nature.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, he fails to specifically identify any error in the Leave Decision.  His assertions are not proper grounds of appeal.

23.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

24.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 14 August 2023 is dismissed.